Author: Hrishabh Daga, Student at O. P. Jindal Global Law School, BBA LLB (Hons), Batch of 2021
Co-Author: Aarushi Chauhan, Student at O. P. Jindal Global Law School, B.Com LLB (Hons), Batch of 2021
ABSTRACT
Marriage is an act of will which unites the spouses and binds them to their eventual souls until death. The historical understanding of marriage is that of a sacred, sacrosanct union and an indissoluble bond. Ancient Hindu texts have conceptualized marriage as a union between a man and woman which once solemnized in accordance with customs and rituals is understood to be irrevocable and forms the basic unit of family institutions and the very foundation of civil society. Even though with the transition of society and onset of modernity, the idea of marriage has been re-conceptualized as more of a contractual relationship which may be terminated if the dissolution of the same can be justified under laws governing civil society but to what lengths the law goes to prevent such justified dissolutions is the question that needs to be mulled over. A marriage between two individuals is deeply centered on the tenet of the spouses’ right to stay together, also known as Conjugal Rights as defined under section 9 of the Hindu Marriage Act, 1955. Even though the section says “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly” but it is unfortunate that Indian wives have borne the brunt of this provision and continue to do so courtesy the judicial interpretation wherein married woman are required to embody the spirit of Goddess Sita who willingly and unquestionable accompany their husbands wherever and whenever they go. Even though the principle of equality as enshrined in our constitution should become the grund norm for the judiciary, but its recent decisions and rulings has been reminiscent of Manusmriti wherein the position of women was relegated to one being without any individual existence once they get married thus making family the least democratic of all social institutions. It is quite ironical that on one hand India as a nation thrives on the idea of gender-based equality not being a mere idle incantation but a vibrant living reality and on the other hand progressive judgments like T. Sareetha V T. Venkatasubbaiah are critiqued for it having ruled section 9 to be void for it being a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by article 21 of the constitution. The idea that a woman once married ceases to have any autonomy over her body, any interests of desires of her own and that male sexual entitlement is the cardinal principle governing marital relations in which the sole role of women is to subserviently perform her wifely duties speaks volumes of the patriarchy and misogyny that is entrenched in the Indian judiciary and a catena of cases on this regard is reflective of the same. As a matter of fact, UK abolished the provision of restitution of conjugal rights way back in the 1970s and India being a common law country heavily under the influence of its colonial laws must learn that a horse can be brought to the water pond, but it cannot be compelled to drink. The law, judiciary and the society must understand that there are many branches on the tree of life. There is no one way to be and there should be room for everyone to be who they are and they way to be.
